TERMS OF USE AND LICENSE AGREEMENT

This Terms of Use and License Agreement (the "Agreement") is made by and between Efficient Collaborative Retail Marketing Company, LLC (together with its Affiliates, "ECRM"), and you (personally or on behalf of your employer, as applicable) ("You"). “Affiliates” means an entity controlled by, under common control with, or controlling such entity, where control is denoted by having (directly or indirectly) more than fifty percent (50%) of the voting power (or equivalent) of the applicable entity.

This Agreement governs Your use of the ECRM MarketGate software services and the ECRM mobile applications (the "ECRM Services"). This Agreement also governs Your use of the ECRM Website (the "Website") and any materials, data and information that You access through the ECRM Services or the Website (collectively, the "Content"). You or Your employer may have negotiated different terms in a separate signed agreement with ECRM, in which case such terms shall control to the extent they conflict with this Agreement.

If you are residing in a jurisdiction that restricts the ability to enter into agreements such as set out in this Agreement, you may not enter into this agreement or use this Website. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to participate in the activities or services offered by this Website, you may not enter into this Agreement or use this Website. By using this Website you are explicitly stating that you have verified in your own jurisdiction if your use of this Website is allowed.

ECRM makes no representation that materials in this Website are appropriate or available for use in all locations. Those who choose to access the Website do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. ECRM reserves the right to limit the availability of the Website, materials, or other products described or offered thereon to any person, geographic area, or jurisdiction ECRM so desires, at any time and in ECRM’s sole discretion.

1. License and Use.

a. License Grant. Subject to the terms and conditions of this Agreement, ECRM grants to You a limited, personal, nonexclusive, nonsublicensable, nontransferable, and revocable license to access and use the Website, the ECRM Services, and the Content made available therein only in the manner presented by ECRM and only for Your internal business purposes. Alteration of the Website, the ECRM Services or the Content in any manner, or use for any other purpose, is explicitly prohibited. The license granted in this Section 1(a) is a single-user license and is not a site license. Any additional users must separately agree to the terms of this Agreement.

b. Registration Details. To access the Website or the ECRM Services, as well as associated resources, You may be asked to provide certain registration details or other information. You represent and warrant that (i) all of the information You provide to or through the Website or the ECRM Services will be correct, current, complete and not misleading, and (ii) you will maintain and update your information to keep it accurate, current and complete. If ECRM believes the information You provide is incorrect, not current, incomplete or misleading, ECRM may suspend or terminate this Agreement and Your access to the Website, the ECRM Services or the Content at any time.

c. License Restrictions. You may only use the Website, the ECRM Services and the Content pursuant to this Agreement and the applicable specifications and documentation. You warrant that You will not use the Website, the ECRM Services or the Content for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not (and may not authorize any party to) (i) co-brand, frame or redistribute the Website, the ECRM Services or the Content; (ii) translate, adapt, reverse engineer, decompile, disassemble, or otherwise modify the Website, the ECRM Services or the Content other than as expressly permitted by law (in which case the end results of such activities shall be the Confidential Information and Intellectual Property of ECRM, and You hereby assign all right, title and interest therein to ECRM); (iii) incorporate the Website, the ECRM Services or the Content (in whole or in part) in any other product, or create derivative works based thereon; (iv) use the Website, the ECRM Services or the Content to provide any facility management, time sharing, service bureau, application hosting, application service provider (ASP), or other similar services, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Website, the ECRM Services or the Content; (v) rent, lease, sell, license or sublicense the Website, the ECRM Services or the Content to a third party; or (vi) duplicate the Website, the ECRM Services or the Content without the express prior written permission of an authorized representative of ECRM. As used herein, "co-brand" means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute the Website, the ECRM Services or Content accessible within the Website or the ECRM Services. You agree to cooperate with ECRM in causing any unauthorized co-branding, framing or linking immediately to cease. In addition, You may not use the Website or the ECRM Services in any manner which could disable, overburden, damage, or impair the Website or the ECRM Services or interfere with any other party’s use of the Website or the ECRM Services. You may not obtain or attempt to obtain any materials, content, or information through any means not intentionally made available or provided for through the Website or the ECRM Services.

2. Use of Communications Services.

a. User Conduct. The Website and the ECRM Services may contain forums, bulletin board services, chat areas, message boards, news groups, communities, personal web pages, calendars, and other message or communication facilities designed to allow You to communicate with the Internet community or with a group (collectively, "Communications Services"). You are solely responsible for all content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Communications Services, or that you contribute in any manner to the ECRM Services. You agree to use the Communication Services only to post, send and receive messages and content that are proper and related to the particular Communication Service. Among other actions, when using a Communication Service, You affirm, represent, and warrant that You will not post, send, submit, publish, or transmit in connection with the Website or the ECRM Services any material that:

i. You do not have the right to post, including proprietary material of any third party, such as files containing software or other third party material protected by intellectual property laws (or by rights of privacy or publicity);

ii. violates or may violate any law, advocates illegal activity or discusses an intent to commit an illegal act;

iii. does not pertain directly to the Website or the ECRM Services;

iv. threatens or abuses others, libels, defames, invades privacy, stalks, or is obscene, pornographic, vulgar, indecent, racist, abusive, harassing, threatening or offensive;

v. seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;

vi. harvests or otherwise collects information about others, including e-mail addresses, without their consent;

vii. impersonates or misrepresents Your connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content;

viii. falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is permissibly uploaded;

ix. advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, or soliciting goods or services) except as may be specifically authorized on the Website or the ECRM Services;

x. solicits funds, advertisers or sponsors;

xi. includes programs that contain viruses, worms or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or network;

xii. disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Website or the ECRM Services;

xiii. includes MP3 format files;

xiv. amounts to a "pyramid" or other like scheme, or consists of contests, chain letters, or surveys;

xv. disobeys any policy or regulations, including any code of conduct or other guidelines, established from time to time regarding use of the Website or the ECRM Services or any networks related to the Website or the ECRM Services; or

xvi. contains links to other websites or software containing content that falls within the descriptions set forth above.

b. Right to Monitor. ECRM reserves the right, but shall not be obligated, to monitor use of the Website and the ECRM Services to determine compliance with this Agreement, as well as the right to remove or refuse any information for any reason. Materials uploaded to a Communication Service may be subject to limits on use, reproduction or dissemination and You are responsible for abiding by such limitations with respect to Your submissions, including any downloaded materials.

c. ECRM CANNOT AND DOES NOT ASSURE THAT OTHER USERS ARE OR WILL BE COMPLYING WITH THE FOREGOING CODE OF USER CONDUCT FOR THE COMMUNICATION SERVICES OR ANY OTHER PROVISIONS OF THIS AGREEMENT, AND, AS BETWEEN YOU AND ECRM, YOU HEREBY ASSUME ALL RISK OF HARM OR INJURY RESULTING FROM ANY SUCH LACK OF COMPLIANCE.

d. If you know or suspect that any of the Content or materials on the Site have been used or copied in a way that constitutes copyright infringement, please sent notice to ECRM’s designated agent identified below. According to the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(3), your notice must comply with the following requirements:

• A physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit ECRM to locate the material;
• Information reasonably sufficient to permit ECRM to contact you, such as address, telephone number, and, if available, an electronic mail address at which you may be contacted;
• A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owners, its agent or the law; and
• A statement that the information in the notification is accurate and under penalty of perjury, that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The designated agent for notice of copyright infringement claims may be reached as follows:

Copyright Agent Name: CFO, Efficient Collaborative Retail Marketing Company, LLC
Address: 27070 Miles Road, Suite A, Solon, Ohio 44139
Email: copyright@ecrm.marketplace.com
Phone: (440) 498-0500

3. Taxes; Audit.

a. Taxes. You are responsible for and shall pay any federal, state, local or foreign sales, use, or other taxes (excluding only taxes based on ECRM’s net income), assessments, or other governmental fees or charges relating to or arising out of this Agreement (collectively, "Taxes"). If ECRM is assessed and/or required to pay any such Taxes on Your behalf, You shall promptly reimburse ECRM for such payments.

b. Audit. You agree to make and to maintain, until the expiration of three (3) years after the expiration or termination of this Agreement is due, complete books, records and accounts regarding this Agreement, Your performance hereunder and Your use of the Content. ECRM shall have the right not more than once every six months and on at least ten days’ notice to examine such books, records and accounts during Your normal business hours to verify Your compliance with this Agreement. You agree to remedy immediately any non-compliance with this Agreement disclosed by ECRM’s examination.

4. Term; Termination and Suspension.

a. Term. This Agreement is effective and will remain in full force and effect so long as You continue to access the ECRM Services, access the Website, or use the Content (the "Term"). Your access to the certain ECRM Services may be limited to a period time as specified at the time of registration.

b. Termination or Suspension of Access. ECRM reserves the right, in its sole discretion, to terminate or suspend Your access to the Website, the ECRM Services and the Content, or any portion thereof, at any time and without notice. Upon such termination or suspension, You must immediately (i) discontinue the use of the Website and the ECRM Services, and (ii) destroy any copies You have made of any portion of the Content. You acknowledge that You are aware that your access to the Website, the ECRM Services and the Content may be terminated or suspended at any time, and that You alone (and not ECRM) bear all responsibility for backing up any and all of Your data.

c. Survival. Sections 1(c), 2-14 shall survive any expiration or termination of this Agreement.

5. Confidentiality.

a. Definition. "Confidential Information" means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, pricing, customer lists, reports, contract terms, software, developments, inventions, processes, designs, drawings, engineering, hardware or software configuration information or user interfaces, marketing, organization, business or finances of or relating to either party to this Agreement or any third party, or any information obtained in confidence or in trust from a third party. Confidential Information of ECRM shall also include, without limitation, the ECRM Services (including any associated software or user interface) and any information which You know or should reasonably understand to be confidential. Confidential Information of ECRM does not include information, technical data or know-how which (i) is already in Your possession without obligations of confidentiality at the time of its disclosure by ECRM; (ii) is or becomes part of the public knowledge without breach of confidentiality obligations; or (iii) is approved by ECRM, in writing, for public release.

b. Confidentiality Obligations. Except as expressly set forth in this Agreement, You will not use in any way for Your own account or the account of any third party, nor disclose to any third party, any Confidential Information of ECRM. You shall at all times maintain such Confidential Information of ECRM in confidence in the same manner and to the same extent as You protect Your own most confidential information (which shall in no event be less than a reasonable degree of care). Upon the termination of this Agreement, You shall promptly return to ECRM or delete all copies of any Confidential Information of ECRM in Your possession.

c. Feedback. You may from time to time provide suggestions, comments or other feedback to ECRM regarding ECRM’s current or future products and services, including the Website, the ECRM Services and the Content (collectively, "Feedback"). You agree that such Feedback, even if designated as confidential by You, shall not create any confidentiality obligation hereunder for or upon ECRM or its suppliers. Except as otherwise provided herein or in a separate subsequent written agreement signed by authorized representatives of the parties, You agree that ECRM shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit any and all Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property or otherwise. You warrant that You have all rights necessary to disclose to ECRM any Feedback that You so disclose, and You shall not provide any Confidential Information of any third party to ECRM unless authorized to do so.

6. DISCLAIMER OF WARRANTIES. YOUR USE OF THE WEBSITE, THE ECRM SERVICES AND THE CONTENT IS AT YOUR OWN RISK. THE WEBSITE, THE ECRM SERVICES AND THE CONTENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. ECRM DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON- INFRINGEMENT, AND NO WARRANTIES ARE MADE RELATING TO THE WEBSITE, THE ECRM SERVICES OR THE CONTENT. ECRM DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE WEBSITE OR THE ECRM SERVICES WILL BE UNINTERRUPTED, ACCURATE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE ECRM SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ECRM DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, INABILITY TO USE, OR THE RESULT OF USE, OF THE WEBSITE, THE ECRM SERVICES OR THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. YOU, AND NOT ECRM, ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE WEBSITE, THE ECRM SERVICES OR THE CONTENT. ECRM FURTHER MAKES NO WARRANTIES AS TO THE ACCURACY OF ANY ECRM SERVICES OR CONTENT ACCESSED FROM ANY ECRM WEBSITE, THIRD PARTY WEBSITES OR OTHERWISE OBTAINED BY YOU.

7. LIMITATION OF LIABILITY. ECRM AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, GENERAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, LOSS OF DATA, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR ANY OTHER DAMAGES, EVEN IF ECRM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ECRM DOES NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR THE COMPLETENESS, ACCURACY, OR USEFULNESS OF ANY OF THE CONTENT PROVIDED ON THE WEBSITE OR THE ECRM SERVICES. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF ECRM AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE ALREADY PAID TO ECRM FOR THE APPLICABLE WEBSITE OR THE APPLICABLE ECRM SERVICES OUT OF WHICH LIABILITY AROSE IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, AND IN SUCH CASES ECRM’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW.

8. Third-Party Links. The Website or the ECRM Services may contain links to third-party websites which are not maintained by, or related to, ECRM. Links to such websites are provided as a service to users and are not sponsored by or affiliated with the Website, the ECRM Services or ECRM. ECRM has not reviewed such websites and is not responsible for the content of those websites. ECRM is not responsible for webcasting or any other form of transmission received from any linked website. Links are to be accessed at Your own risk, and ECRM makes no representations or warranties about the content, completeness or accuracy of these links or the websites linked to the Website or the ECRM Services. ECRM provides links as a convenience, and the inclusion of any link to a third-party website does not imply endorsement by ECRM of that website or any association with its operators.

9. Submissions.

a. Right to Use. You hereby grant to ECRM a royalty-free, perpetual, irrevocable, worldwide, sublicensable, transferrable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, disclose and otherwise exploit all content, remarks, suggestions, ideas, graphics, or other information communicated to ECRM through the Website or the ECRM Services (collectively, the "Submission"); to incorporate any Submission in other works in any form, media, or technology now known or later developed; and to sublicense others to do any of the foregoing. ECRM will not be required to treat any Submission as confidential, may use any Submission in its business (including without limitation, for products or advertising) without incurring any liability for royalties or any other consideration of any kind, and will not incur any liability as a result of any similarities that may appear in future ECRM operations. ECRM will treat any personal information that You submit to ECRM through the Website or the ECRM Services in accordance with its Privacy Policy found on the Website. You may also view the Privacy Policy here

b. Your Responsibility for Submissions. You remain solely responsible for the content of Your Submissions. You acknowledge and agree that ECRM and any third party that provides Content to ECRM will not assume or have any liability for any action or inaction by ECRM or such third party with respect to any submission. ECRM cautions You against giving out any personally identifying information about Yourself or Your children in any Communication Service. ECRM does not control or endorse the content, messages or information found in any Communication Service and, consequently, ECRM specifically disclaims any liability with respect to the Communication Services and any actions resulting from Your participation in any Communication Service. Managers and hosts are not authorized as ECRM spokespersons, and their views do not necessarily reflect those of ECRM.

10. Security. Any passwords used for the Website or the ECRM Services are for individual use only. You will be responsible for the security of Your password (if any). ECRM may monitor Your password and, at its discretion, require You to change it. If You use a password that ECRM considers insecure, ECRM may require the password to be changed or may terminate Your account. You are prohibited from using any services or facilities provided in connection with the Website or the ECRM Services to compromise security or tamper with system resources or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If You become involved in any violation of system security, ECRM reserves the right to release information about You to system administrators at other websites in order to assist them in resolving security incidents. ECRM reserves the right to investigate suspected violations of this Agreement, and to fully cooperate with any law enforcement authorities or court order requesting or directing ECRM to disclose the identity of anyone posting, publishing or otherwise making available any materials that are believed to violate this Agreement or any applicable law. You agree to notify ECRM immediately of any unauthorized use, theft or misappropriation of your account, username, or password. ECRM shall not be liable for any loss that you incur as a result of someone else using your username or password, either with or without your knowledge.

11. Intellectual Property Rights.

a. Ownership. As between you and ECRM, any and all copyright, patent, trademark, service mark and other intellectual property or proprietary rights ("Intellectual Property") associated with the Website, the ECRM Services or the Content are the sole property of ECRM or its affiliates. Such items are protected by Intellectual Property laws in the Unites States and in other countries. Elements of the Website, the ECRM Services and the Content are also protected by trade dress, trade secret, unfair competition, and other laws and may not be copied or imitated in whole or in part. As between you and ECRM, all custom graphics, icons, logos, and other items that appear on the Website are trademarks, service marks, or trade dress of ECRM and its affiliates or licensors. Except as expressly provided herein, ECRM does not grant to You any express or implied rights to ECRM’s or any third party’s Intellectual Property. You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other Intellectual Property notice or legend appearing on the Website, the ECRM Services or the Content. All rights not expressly granted herein are reserved by ECRM. Any unauthorized use of the Content appearing on this Website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.

b. Copyright Notices. All Content of the Website and the ECRM Services are: Copyright ©, Efficient Collaborative Retail Marketing Company, LLC, 27070 Miles Road, Solon Ohio 44139. All rights reserved.

c. Third Party Software. The ECRM Services and any other software available for download via the Website or otherwise obtained from ECRM may contain or be bundled with software licensed to ECRM by third parties (collectively, "Third Party Software") that is protected by copyright and other Intellectual Property rights of Third Party Software vendors. Use of such Third Party Software is governed by the terms of the license agreement that accompanies or is included with the Third Party Software. If no license agreement accompanies or is included with the Third Party Software, then the terms of this Agreement shall apply to the use of that Third Party Software. In the event of any conflicts between this Agreement and any applicable third party license terms, as to that specific component only, the terms of the applicable third party license agreement shall control.

d. Third Party Services. The use of certain ECRM Services may require Your access to and use of third party websites and other services provided by third parties and not by ECRM (collectively, "Third Party Services"). You may be required to enter into agreements with third parties and pay fees to third parties in connection with the use of such Third Party Services. In the event that You provide or make available to ECRM any third party data (whether obtained via Third Party Services or otherwise), You hereby grant to ECRM a royalty-free, worldwide, sublicensable, transferrable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, disclose and otherwise exploit all such data in connection with ECRM’s provision of the Website, the ECRM Services and the Content, and You represent and warrant that you possess all rights and licenses necessary to make such grant to ECRM.

12. Indemnification. You will indemnify, defend and hold ECRM, its affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the "Indemnified Parties") harmless from and against any and all liabilities, claims, losses and expenses, including attorneys' fees, which arise directly or indirectly from, or relate to (a) your breach of this Agreement; (b) your use of the Website, the ECRM Services or the Content; (c) any Submissions or Feedback You provide; or (d) Your violation of any law or the rights of any third party. You will also indemnify, defend and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of the Your use of the Third Party Services.

13. Miscellaneous.

a. Choice of Law; Dispute Resolution. This Agreement will be governed and interpreted pursuant to the laws of Ohio, United States of America, notwithstanding any principles of conflicts of law. The parties expressly waive and exclude the application of the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods. You consent to, and agrees that You are subject to, the jurisdiction of the state and federal courts located in Cleveland, Ohio with respect to any actions for enforcement of or breach of this Agreement. Except in the case where a party is seeking injunctive relief or other equitable relief, the parties shall first attempt, promptly and in good faith, to resolve any disputes arising out of or relating to this Agreement through discussions between themselves at the operational level. In the event a resolution cannot be reached at the operational level, the disputing party shall give the other party written notice of said dispute and such dispute shall be negotiated between senior executives of the parties who have authority to settle the controversy. If the parties fail to resolve said dispute within thirty (30) days of the disputing party’s notice, a party may seek redress as follows. Any controversy or claim arising out of or in connection with this Agreement, or the alleged breach thereof that is not resolved by the foregoing procedure shall be resolved by Arbitration, in accordance with commercial Arbitration Rules of the American Arbitration Association then in effect. A single arbitrator shall be used, and the arbitrator shall have the sole discretion to determine the nature, extent and scope of discovery in the arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

b. Severability. If any part of this Agreement is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.

c. No Joint Venture. You agree that no joint venture, partnership, employment, or agency relationship exists between You and ECRM as a result of this agreement or use of the Website, the ECRM Services or the Content.

d. Amendment; Waiver. The most current version of this Agreement, which supersedes all prior versions, can be reviewed by clicking on the "Terms of Use" link located on the Website. Any changes to this Agreement as posted on the Website shall apply to Your use of the Website, the ECRM Services and the Content after the updated Agreement has been posted on the Website. Any other amendments to the Agreement shall be made in writing signed by both You and ECRM. No waiver by either party of any breach or default by the other party of any of its obligations under this Agreement shall be deemed to be a waiver of any other breach or default of the same or any other nature.

e. Equitable Relief. You hereby acknowledge that unauthorized disclosure or use of the Website, the ECRM Services, the Content or any Confidential Information would cause irreparable harm and significant injury to ECRM that may be difficult to ascertain. Accordingly, You agree that ECRM may seek immediate injunctive relief, without posting a bond or other security, to enforce Your obligations under this Agreement in addition to any other rights and remedies ECRM may have.

f. Entire Agreement. This Agreement constitutes the entire agreement among the parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and ECRM with respect to the Website, the ECRM Services and the Content. A printed version of this Agreement and of any notice given in electronic form shall be admissible in arbitration proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and shall not modify or limit any of the terms thereof.

g. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including without limitation act of God, accident, earthquake, fire, flood, hurricane, tornado, storm or other weather condition, war, terrorism, cyberterrorism, hacking, sabotage, riot, civil disorder, act or decree of any governmental body, power or network failure, lockout, strike or other labor disturbance, illness, death or any other natural or artificial disaster. In the event of any such failure or delay, the parties shall use commercially reasonable efforts to perform as soon as practicable.

h. Assignment. You shall not assign, sublicense or otherwise transfer this Agreement in whole or in part, whether by way of merger, acquisition of stock or assets, operation of law or otherwise, without ECRM’s prior written approval. Any purported assignment in violation of the foregoing shall be null and void. ECRM may assign, sublicense or otherwise transfer this Agreement in whole or in part, whether by way of merger, acquisition of stock or assets, operation of law or otherwise, without Your prior written approval. This Agreement shall be binding upon and accrue to the benefit of any permitted successors and assigns.

i. Notices. All notices required under this Agreement shall be made in writing, if to ECRM, to Efficient Collaborative Retail Marketing Company, LLC, 27070 Miles Road, Solon, OH 44139, Attn: Chief Financial Officer, and if to You, to the address You provide as part of the registration process, and will be deemed to have been duly given upon the attempted delivery by first class mail thereof, sent by registered or certified mail, return receipt requested, postage paid, or upon receipt or refusal of hand delivery.

j. Export Control. You shall comply with all United States and foreign export and import laws, rules, and regulations related to Your use of any ECRM Services outside the United States. You shall be responsible for and shall pay (or reimburse ECRM for) all United States and foreign export and import duties, fees, and other governmental charges, however designated, associated with Your use of any ECRM Services outside the United States. Your failure to comply with this provision is a material breach of this Agreement.

k. Government Use. In the event that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, You agree that the ECRM Services are provided with restricted rights. In such a case, the ECRM Services and the corresponding documentation are "Commercial Items," as that term is defined at 48 C.F.R. Section 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (i) only as Commercial Items and (ii) with only those rights as are granted to all other licensees and end users pursuant to ECRM’s standard Terms of Use and License Agreement.

14. Mobile App Acknowledgements.

a. You acknowledge that ECRM does now or may in the future provide access to certain portions of the Website or ECRM Services or data from the servers operating the Website as part of software applications that are obtained from the Apple App Store, the Google Play store, or other similar third party online locations that allow for the downloading of software applications.

b. This Agreement incorporates by reference the Licensed Application End User License Agreement (the "LAEULA") published by Apple, Inc. (located online here), which You hereby acknowledge having read and understood. For purposes of this Agreement, the software obtained from ECRM through the Apple App Store is considered the "Licensed Application" as defined in the LAEULA and ECRM is considered the "Application Provider" as defined in the LAEULA. If any terms of this Agreement are in conflict with the terms of the LAEULA, the terms of the LAEULA shall control solely to the extent of such conflict.

c. As between ECRM and Apple, Inc. or Google Inc., ECRM is solely responsible for the software applications and any content contained therein. You acknowledge that Apple, Inc. and Google Inc. have no obligation whatsoever to furnish any maintenance and support services with respect to the software.

d. You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) You are not listed on any U.S. Government "watch list" of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.